Internet Addiction, the Americans with Disabilities Act, and Employment

Vol. 32 No. 3

By

William D. Goren, Esq., J.D., LL.M., (williamgoren.com/blog), is author of Understanding the Americans with Disabilities Act (fourth edition, ABA, 2013) and a blog of the same name. His practice focuses on understanding the ADA so that clients understand what it means to comply.

The Americans with Disabilities Act (ADA) grants employment protection for qualified individuals with a disability. But how do addictions relate to the ADA? Particularly, do forms of compulsivity, such as addiction to the Internet or online gaming, qualify a person for ADA protection, and will the statute treat such compulsivity the same way it treats drug or alcohol addiction? This article will address these matters, as well as the limitations placed on employers by the ADA when dealing with an employee who may be engaged in any form of addictive behavior.

Internet Addiction as a Disability

Concern about Internet addiction is not new. As far back as 1996, Kimberly S. Young presented a paper to the American Psychological Association in which she discussed Internet addiction as a new clinical disorder and offered a diagnostic questionnaire to assess whether a person suffers from this disorder (tinyurl.com/no4g5mo). Does such an individual qualify as a person with a disability under the ADA? Two questions must be asked when making this determination.

First, does a person addicted to the Internet or online gaming have a physical or mental impairment? Under the ADA as amended, a person has a disability, per 42 U.S.C. § 12102(1), if he or she has a physical or mental impairment that substantially limits one or more of life’s major activities; has a record of such an impairment regardless of whether he or she currently is substantially limited in a major life activity; or is regarded as having such an impairment. There are studies (e.g., tinyurl.com/o78xyt3) suggesting that when Internet-addicted individuals are engrossed in online games, certain pathways in their brains are triggered in the same direct and intense way that a drug addict’s brain is affected by a particular substance.

Second, has a major life activity of a person addicted to the Internet or online gaming been substantially limited? Major life activities, per 42 U.S.C. § 12102(2), include but are not limited to (1) caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working; and (2) functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Further, for a person to be substantially limited, per 29 C.F.R. § 1630.2 (j)(ii), he or she must be substantially limited in a major life activity as compared to most people in the general population. Someone addicted to the Internet or online gaming might indeed have many of the above major life activities substantially limited (e.g., sleeping, concentrating, neurological functioning, etc.). Whether these limitations are such that the person would be substantially limited as compared to most people in the general population is the question that must be answered. Unfortunately, no consensus exists on the matter. Proving substantial limitation in any context has become much easier given the amendments to the ADA.

Assuming you could prove that a person with an Internet addiction has a disability under the ADA, the next question in an employment context becomes whether that person is qualified for the job. Under 29 C.F.R. § 1630.2(m), a person with a disability is qualified with respect to employment if he or she satisfies the requisite skill, experience, and education requirements of the position and can, with or without reasonable accommodation, perform the essential functions of the job. Think of essential functions as any function fundamental to carrying out that particular job. So, can our person carry out the fundamental requirements necessary for his or her job while being addicted to the Internet without creating an undue hardship in the financial or logistical sense? In this situation, financial hardship is not going to be an issue, but logistical hardship might be. For example, would accommodating an individual with a gaming addiction either mean fundamentally altering the operations of the business (I find it helpful to think of logistical undue hardship in terms of fundamental alteration, a term used in Title II and Title III of the ADA), or would it mean compromising the job’s essential functions (an employer does not have to modify a job’s essential functions).

Drug and Alcohol Addiction under the ADA

The ADA’s statutory language regarding addiction to drugs and alcohol potentially poses yet another obstacle to an employee seeking protection as a result of Internet addiction if the courts decide to treat this kind of addiction the same way as drug and alcohol addiction. The ADA at 42 U.S.C. § 12114(a), (b) has a safe harbor specifically excluding persons addicted to drugs and alcohol from protection. Further, the ADA at 42 U.S.C. § 12114 (c)(4) allows an employer to hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee. However, it also should be pointed out that a person with a record of being addicted to drugs or alcohol is protected under the ADA. In short, a current user of drugs or alcohol is not protected, but a person with a record of such use is. So, the question becomes whether a person addicted to alcohol or drugs is a current user.

How a current user is defined depends on the circuit. For example, in the Second Circuit, the question is whether a person’s substance abuse problem is severe and recent enough that the employer is justified in believing that the employee is unable to perform the essential duties of the job (Teahan v. Metro-North Commuter Railroad Company, 951 F.2d 511 (2d Cir. 1991)). In the Fourth and Sixth Circuits (Shafer v. Preston Memorial Hospital Corporation, 107 F.3d 274 (4th Cir. 1997); abrogated on another ground by Baird ex rel. Baird v. Rose, 192 F.3d 462 (4th Cir. 1999); Greer v. Cleveland Clinic Health System-East Region, 503 Fed. Appx. 422 (6th Cir. 2012, unpublished)), current drug use refers to the illegal use of drugs that occurred recently enough to justify an employer’s reasonable belief that involvement with drugs is an ongoing problem. In the Ninth Circuit (Brown v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir. 2001)) a significant length of time needs to transpire before a person is no longer a current user. In the Tenth Circuit (Mauerhan v. Wagner Corporation, 649 F.3d 1180 (10th Cir. 2011)), the court looked to whether the circumstances of the plaintiff’s drug use and recovery justify a reasonable belief that drug use is no longer a problem. The Fifth Circuit (Zenor v. El Paso Health Care System Limited, 176 F.3d 847 (5th Cir. 1999)) agrees with the Second Circuit. The Third Circuit (New Direction Treatment Services v. City of Reading, 490 F.3d 293 (3d Cir. 2007)) manages to agree with the Ninth, Fourth, Sixth, and Second Circuits all at the same time. In the 11th Circuit (Jarvela v. Crete Carrier Corporation, 776 F.3d 822 (11th Cir. 2015)), a current user would include someone who left a rehabilitation program seven days before being terminated.

In summary, the critical question is whether people who are addicted to the Internet will be evaluated in terms of traditional disability/qualification analysis or whether they will be evaluated under the separate rules that apply to drug and alcohol addiction; depending on which rule applies, you get to different places, especially with regard to how performance of the employee is evaluated. Because the Internet and online gaming are so new, the ADA and its implementing regulations do not discuss this question explicitly. On the theory that addiction is addiction, it would make sense that the new forms of addiction would be treated the same way as drug and alcohol addiction. The answer to this question, absent congressional lawmaking or agency rulemaking, remains for the courts to determine.

Concerns for Employers

More generally, how should an employer respond when faced with addiction in the workplace? The problem is not going away for the foreseeable future, if ever.

Understanding what an employer can do means understanding the ADA scheme dealing with medical inquiries/exams/disability-related inquiries. Basically, it works as follows: First, pre-employment medical inquiries/exams are prohibited. Nothing wrong, however, with an employer’s asking whether a person can do the essential functions of the job. That said, employers who plan to make a pre-employment medical inquiry pertaining to an essential function of the job had better be sure that their description of a job’s essential function is airtight. Also, employers need to be sure that they are not screening out persons with disabilities through testing (42 U.S.C. 12112(b)(6)).

Second, after a conditional job offer, just about anything is permissible. However, two caveats: (1) don’t forget about the Genetic Information Nondiscrimination Act; (2) if the information from the medical exam subsequent to a conditional job offer leads the employer to revoke the offer, that revocation must be based on information that is job related and consistent with business necessity, and the performance of the job must not be able to be accomplished even with reasonable accommodations.

Third, post-employment medical inquiries/exams can only be done when they are job related and consistent with business necessity (42 U.S.C. § 12112(d)(4)(A)).

Therefore, we need to know several things: What is a medical exam? What is a disability-related inquiry? What is job related? And what is consistent with business necessity? Two cases from the Sixth Circuit (Bates v. DuraAuto Systems, 767 F.3d 556 (6th Cir. 2014) and Kroll v. White Lake Ambulance Authority, 763 F.3d 619 (6th Cir. 2014)) answer these questions.

From Bates we can take the following. First, the Equal Employment Opportunity Commission (EEOC) in its enforcement guidance pertaining to disability-related inquiries and medical examinations of employees under the ADA (tinyurl.com/y9jdl37) defines a prohibited medical exam as any tests or procedures seeking information about an individual’s physical and mental impairment or physical or psychological health. The EEOC identifies several factors for making this determination, including whether the test is administered by a health care professional; whether the test is interpreted by a health care professional; whether the test is designed to reveal an impairment of physical or mental health; whether the test is invasive; whether the test measures an employee’s performance of the task or measures his or her physiological response to performing the task; whether the test is normally given in a medical setting; and whether medical equipment is used. In many cases, some combination of factors will be relevant in determining whether a test or procedure is a medical examination, but it is also possible that one factor may be enough. A nonexclusive list of medical examinations includes vision test, blood pressure and cholesterol screening, range-of-motion test, and diagnostic procedures such as X-rays, CAT scans, and MRIs. The guidance even identifies two qualifying urine tests (discovering alcohol use and detecting genetic markers for disease) as also being medical exams.

Second, consider whether the employer refrained from asking plaintiffs about their medical conditions. Third, consider whether the information obtained revealed information to the employer about the employee’s medical conditions. Fourth, consider whether the chemicals that the test sought constituted protected medical information or even an impairment under the EEOC definition of medical examinations. Fifth, consider whether an employer would struggle to figure out medical conditions from the prescription drugs discovered through this testing regimen. Sixth, consider whether there are inconsistencies between the employer’s written and actual drug testing policies so as to show an impermissible motive on the part of the employer. Seventh, consider whether the disclosure of the medications typically revealed confidential health information so that a jury would determine that the test targets information about an employee’s physical and mental health regardless of the employer’s intent.

In addition to pre-employment medical exams being prohibited, disability-related inquiries are also prohibited. A disability-related inquiry is any inquiry likely to elicit information about a disability. With respect to determining whether a disability-related inquiry exists, an employer should consider involving persons with disabilities in the process, as persons with disabilities are frequently uniquely sensitive to these concerns.

With respect to “job related” and “consistent with business necessity,” we can take the following from the Sixth Circuit in Kroll. First, the burden of proof is on the employer. Second, “job related” involves the employer’s showing either that the employee requested an accommodation, the employee’s ability to perform the essential functions of the job was impaired, or the employee posed a direct threat to himself or others. Third, with respect to “consistent with business necessity,” an employer is not going to be able to make a bare assertion that a medical examination was merely convenient or expedient. Instead, an employer that decides to require medical examination of an employee must have a reasonable belief based on objective evidence that the employee’s behavior threatens a vital function of the business. Fourth, whether a medical examination (in this case a mental examination) is job-related and consistent with business necessity is governed by an objective standard (the reasonable prudent person). Finally, the assessment of whether an employee poses a direct threat has to be individualized to the employee’s abilities and job functions and based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence.

Conclusion

So what can the reader take away from this article? I would suggest the following. First, addiction to the Internet may or may not be a disability under the ADA. Second, it is far from clear whether addiction to the Internet will be analyzed in the manner of a person’s disability or whether it will be analyzed in the manner of a person’s addiction to alcohol or drugs. The difference matters because of the current user safe harbor when it comes to drug and alcohol addiction and how the two approaches differ when it comes to evaluating the performance of the employee. Third, any systems put in place by an employer must be based on knowledge of the ADA scheme for pre-employment and post-employment medical exams and disability-related inquiries. This involves knowing what is a medical exam, what is a disability-related inquiry, what it means to be job-related, and what it means to be consistent with business necessity. Finally, employers will want to consider whether they need to have cause to conduct a post-employment medical exam (for more on this point, see my blog entry at tinyurl.com/ozs49ap). As always, the process of sorting out complicated legal matters such as the ones discussed in this article should involve knowledgeable legal counsel.

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